New Rule Allows Automatic Employment Authorization Extension for Certain Pending EAD Renewals

In November of 2016, the Department of Homeland Security released a final rule seeking to improve certain aspects of the employment-based immigration system. This rule went into effect on January 17, 2017. A portion of that rule introduces some relief and changes to the ways Employment Authorization Documents (EADs) are being adjudicated.

Previously, the regulations did not allow for employment authorization (with the exception of STEM OPT extensions) after the current EAD has expired and while a timely-filed EAD renewal is pending. This created significant difficulty and stress to EAD applicants who must file renewals months in advance and who rely on USCIS timely adjudicating such EAD renewal applications.

The final rule authorizes employment while the EAD renewal is pending for up to 180 days after the expiration of the existing EAD when the following criteria are met:

  1. The applicant files the EAD renewal prior to the current EAD’s expiration date – timely filing
  2. The applicant is applying under the same EAD category as previously filed; and
  3. The applicant is filing under a category which does not first require adjudication of an underlying application.

USCIS has restricted the availability of this provision only to certain types of EAD applications. Notably, Adjustment of Status EADs are included under this automatic employment extension provision, but H-4, L-2, and similar EADs are not eligible.

Specifically, the available classes are as follows:

  • (a)(3) – refugees;
  • (a)(5) – asylees;
  • (a)(7) – parents or dependent children of people who received permanent residency under INA 101(a)(27)(l);
  • (a)(8) – citizens of Micronesia or the Marshall Islands;
  • (a)(10), TPS (a)(12), and (c)(19) – applicants granted withholding of deportation or removal;
  • (c)(8) – applicants with pending asylum or withholding of deportation or removal;
  • (c)(9) – pending adjustment of status applications;
  • (c)(10) – applicants with pending suspension of deportation and cancellation of removal;
  • (c)(16) – applicants for creation of a record of lawful admission for permanent residence;
  • (c)(20) and (c)(22) – legalization applicants;
  • (c)(24) – LIFE Act adjustment applicants; and
  • (c)(31) – VAWA cases.

Additionally, USCIS is removing the previous provisions requiring it to adjudicate EADs in 90 days or less. The stated reason is “to address national security and fraud concerns.” Interim EADs have also been eliminated. While USCIS intends to continue to adhere to the 90-day EAD processing timeline, there are no mechanisms for relief in cases where the EAD remains pending for more than 180 days or for EAD applicants who are not eligible to take advantage of the new automatic employment authorization extension provision. USCIS is also allowing EAD extensions to be filed 180 days prior to expiration, as opposed to the former 120 days.

If you have questions on these regulations or are interested in applying for an EAD, please contact our office to schedule a consultation with one of our attorneys today!